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ELCDismissed· [2019] KEELC 3404 (KLR)

Kanampiu M’Rimberia v Julius Kathuanje & 2 others [2019] KEELC 3404 (KLR)

Environment and Land Court
15 May 2019
LMLucy N. Mbugua
1,227 words in judgment
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The bottom line

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A Kenyan land court refused to pause a judgment dismissing a case, because only orders requiring someone to act can be stayed — a dismissal cannot.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru on a Notice of Motion dated 20th February 2019 in which the plaintiff sought stay of execution of the judgment and decree delivered on 13th February 2019, pending the hearing and determination of Minister's Appeal 53/2008 concerning land parcels 6220 and 1711. The original suit had sought rectification of the Mbeu Adjudication Section's Register in respect of parcels 1711, 6220 and 1710, but was dismissed on 13th February 2019 because the court found it had no jurisdiction to determine the dispute. The plaintiff alleged he faced imminent eviction and criminal charges of forcible detainer from the 1st and 2nd defendants. The 1st defendant opposed, contending the applicant should have appealed to the Minister instead of coming to court, that the suit was dismissed, and that a dismissal order cannot be stayed. The court, applying Co-operative Bank v BIFU, Western College v Oranga and related authorities, held that stay orders issue only in respect of positive orders; since the judgment merely dismissed the suit for want of jurisdiction and ordered no party to do or refrain from doing anything, there was nothing to stay. The court further held that granting a stay of its pronouncement that it lacked jurisdiction would be an absurdity and that it was functus officio. The plaintiff's allegations of imminent eviction were unsupported by evidence. The application was dismissed with costs to the defendants on 15th May 2019.

Key legal issues

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01

Whether a stay of execution can issue in respect of a judgment dismissing a suit for want of jurisdiction

Holding

No. Stay of execution applies only to positive orders; a dismissal for want of jurisdiction leaves nothing to be done or refrained from, so there is nothing to stay.

Reasoning

The court found that on 13th February 2019 it had dismissed the plaintiff's suit after concluding it lacked jurisdiction over the dispute. The import of that pronouncement was that the court downed its tools. Since no order compelling any party to do, or refrain from doing, anything was made, there was no positive obligation in the decree whose performance could be delayed. Suspending such a pronouncement would amount to an absurdity, and the court, having pronounced itself, was functus officio.

p. 2
02

Whether the plaintiff's claim of imminent eviction justified a stay

Holding

No. The allegations of imminent eviction were unsupported by evidence.

Reasoning

The plaintiff alleged that the 1st and 2nd defendants were threatening and harassing him with eviction and criminal charges of forcible detainer. The court found these allegations were not supported by any evidence. Moreover, since the court had made no orders for eviction when dismissing the suit for incompetence, any threatened eviction could not have flowed from the decree, further undermining the basis for a stay pending the Minister's appeal.

p. 1

Legal principles established

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  • Stay orders can only be issued in respect of positive orders; a negative order such as a dismissal of a suit is incapable of execution save in respect of costs
  • A court that has downed its tools for want of jurisdiction is functus officio as far as that matter is concerned

Court orders

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  1. 1.The plaintiff's application dated 20th February 2019 is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 28
  • Civil Procedure RulesOrder 22 Rule 25

Cases cited (5)

  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Mugenyi & Co. Advocates v National Insurance Corporation
    Civil Appeal No. 13 of 1984
  • Western College of Arts and Applied Sciences v Oranga & Others
    (1976-80) 1 KLR
  • Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Ors
    [2016] eKLR
  • Kanwal Sarjit Singh Dhiman v. Keshavji Juvraj Shah
    [2008] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 and 28 of the Civil Procedure Act; Order 22 Rule 25 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kanampiu M’Rimberia v Julius Kathuanje & 2 others [2019] KEELC 3404 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3404/eng@2019-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.